UNITED STATES OF AMERICA v. BRIAN LEE CORBETT
Civil Action No. 2:23-cr-00128
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON
February 26, 2024
Pending is defendant‘s Motion to Suppress Evidence, filed on November 9, 2023. ECF No. 21. An evidentiary hearing was held on December 5, 2023, see ECF No. 32, the transcript for which was completed and filed on December 14, 2023, see ECF No. 35. The issue was then fully briefed, with the defendant‘s supplemental brief in favor of his motion filed on December 29, 2023, see ECF No. 41; the government‘s supplemental response filed on January 10, 2024, see ECF No. 44; and the defendant‘s supplemental reply filed on January 16, 2024, see ECF No. 45.
The court makes the following findings of fact by a preponderance of the evidence and the conclusions of law stated below.
At the time of the events leading to defendant‘s arrest, West Virginia State Police Trooper Tyler J. Hannon (“Trooper Hannon“) was assigned to the Bureau of Criminal Investigations Unit and to the “U.S. 119 Task Force” to “investigate drug crimes and violent crimes.” Hannon Suppression Hearing Testimony 4:20-5:4, ECF No. 35 (hereinafter, “Hannon Test.“). Beginning in February 2023, a cooperating individual (“CI“) provided information to Trooper Hannon that defendant was distributing controlled substances in Boone and Logan Counties of West Virginia, and that defendant typically travelled thereto from Charleston on the weekends. Hannon Test. 6:2-18.1
Over the next two months, the CI informed Trooper Hannon that defendant was present at “known drug locations.” Id. “[A]t least two separate times,” Trooper Hannon conducted surveillance and observed defendant in his vehicle, a gray Lincoln MKZ sedan with license plate 36W500, at two apartment complexes in the Logan Area suspected by the U.S. 119 Task Force to be drug distribution locations. Hannon Test. 6:19-8:4;
On April 19, 2023, the CI informed Trooper Hannon that the CI‘s coworker had purchased what the CI suspected to be suboxone from the defendant on April 18, 2023, and that defendant had stored those substances in a camouflage bag in the trunk of his vehicle. Hannon Test. 9:5-18. The CI informed Trooper Hannon that the transaction occurred “at the Taco Bell in [Southridge Shopping Center]” in South Charleston, Kanawha County, West Virginia. Hannon Test. 8:14-16.
On Saturday, April 22, 2023, Trooper Hannon was informed by the CI that defendant had informed the CI that he would be “down in Logan County around [2:00 p.m.]” that day. Hannon Test. 10:12-13. There is no indication that the purpose of defendant‘s trip to Logan County on April 22, 2023, was to transact controlled substances. Upon learning of defendant‘s
Believing that defendant would be travelling south on U.S. Route 119 during the afternoon of April 22, 2023, based on the information from the CI, Trooper Hannon positioned himself along U.S. Route 119 near Charleston where it runs toward Logan County to watch for defendant‘s vehicle. See Hannon Test. 9:23-11:6.
Trooper Hannon informed fellow West Virginia State Troopers Allen R. Workman (“Trooper Workman“) and T.D. Fields (“Trooper Fields“) of the CI‘s tip and instructed them to attempt a traffic stop of defendant‘s vehicle. Hannon Test. 9:23-11:6. Trooper Hannon enlisted the help of Trooper Workman because he had a narcotic-detecting dog. Hannon Test. 12:4-5. In turn, Trooper Workman enlisted the help of West Virginia State Police Sergeant Jamie L. Barker (“Sgt. Barker“). See Hannon Test. 11:12-12:9.
Around 4:00 pm that day, Trooper Hannon observed defendant‘s Lincoln traveling south on U.S. 119 toward Logan
At 16:08:28,3 Trooper Workman contacted dispatch and requested to run the license plate on defendant‘s vehicle. Jt. Stip. ¶ 1. At 16:08:50, dispatch responded that the vehicle was registered to the defendant. Id. At 16:08:56, Trooper Workman informed dispatch that he was initiating a traffic stop of the vehicle. Id.
At 16:09:00, Trooper Workman pulled his cruiser to the right shoulder of the road and parked behind Mr. Corbett‘s vehicle. Id. at ¶ 2. At 16:09:30, Trooper Workman made initial
Trooper Bаrker testified that, upon receiving the documents, he “walked back to [his] vehicle and got straight in [] and requested [the driver‘s history from dispatch],” and that he did nothing to delay his inquiry. Barker Test. 106:1-10. Dispatch responded “a couple [of] minutes later.” Id. at 106:18.
Between 16:11:52 and 16:12:03, Trooper Workman spoke with Trooper Fields and said, among other comments,5 that he was
At 16:13:00, Trooper Workman asked Mr. Corbett if there was “anything illegal” in his vehicle, and if he would be willing to consent to a search. Id. at ¶ 7. At 16:13:09, Mr. Corbett declined to give his consent. Id. At 16:13:15, Trooper Workman directed Mr. Corbett to walk to the front of the vehicle, where Trooper Fields and Mr. Corbett‘s passenger were standing. Id.
At 16:13:19, Trooper Workman turned and walked back toward his cruiser to retrieve his police dog, Kali (“K9 Kali“). Id. ¶ 8. Trooper Workman testified that K9 Kali had received training from the West Virginia State Police, that he and K9 Kali had undergone a month-long training period together, that he and Kali were twice certified at the time of the stop, and that he and Kali did ad hoc, continuous training on a regular basis. See Workman Test. 34-42:7. As part of that training, K9
Returning to the sequence during the traffic stop, between 16:13:35 and 16:13:39, Sgt. Barker leaned out of his car, spoke to Trooper Workman, and made a hand motion directed at Trooper Workman. Jt. Stip. ¶ 7. At 16:13:44, Trooper Workman opened the rear passenger door of his cruiser to get K9 Kali out. Id. At 16:13:59, K9 Kali jumped out of the cruiser. Between 16:14:00 and 16:14:07, Trooper Workman led K9 Kali from his cruiser to the rear of defendant‘s vehicle. Id.
At 16:14:09, K9 Kali stood at the rear passenger‘s side of Mr. Corbett‘s vehicle, near the trunk. Id. at ¶ 8. At
Trooper Workman testified that he has noticed that K9 Kali often indicates other signs of an imminent alert, “body changes” including “behavior changes, breathing, tense in his body, just basic mannerisms, in general, will change when he comes into the odor of narcotics,” pursuant to which Workman believed he can “tell when (K9 Kali) comes into the odor of narcotics . . . before he goes into that seated position.” Workman Test. at 43:15-24. Trooper Workman further testified,
[K9 Kali] initially upped near the rear passenger side seat, which (sic) I observed somewhat of a body change, like somewhat of a breathing change around there, a small one. I kind of pulled him out of it and worked him around, and he really locked in. And he displayed that real quick breathing change at the driver‘s side door. And that‘s when he really locked in. I couldn‘t even pull him out of the odor at that point. He was locked in firm. And then he went into that sit.
Id. at 60:1-10.
At 16:14:44, Trooper Workman verbally praised K9 Kali and began to walk K9 Kali back to his cruiser. Jt. Stip. ¶ 8. At 16:14:53, K9 Kali jumped back inside Trooper Workman‘s
At 16:15:54, Trooper Workman opened the front passenger‘s side door of defendant‘s vehicle and began searching the vehicle. Id. at ¶ 11. While searching the trunk, Trooper Workman reached for a camouflage bag. Id. Trooper Workman found within the camouflage bag small plastic baggies of suspected controlled substances in an unlocked zipped compartment on the top of the bag. Id. Trooper Fields then approached Trooper Workman and told him that defendant had said that there was marijuana and a set of scales in a pink bag in the trunk of the vehicle. Id. Trooper Workman proceeded to cut open the zipper to the locked main compartment of the camouflage bag, and he saw suspected controlled substances inside. Id. Trooper Workman then found the pink bag containing the marijuana and the scales inside a backpack in the trunk. Id. Trooper
Trooper Workman next leaned inside the front passenger‘s side door of defendant‘s vehicle and picked up some cash that Trooper Fields had placed on the seat. Id. at ¶ 12. Sgt. Barker asked Trooper Workman if he wanted to put the cash in an evidence bag. Id. Trooper Workman handed the cash to Sgt. Barker and closed the front passenger‘s side door of defendant‘s vehicle. Id. Trooper Workman then placed a purse belonging to defendant‘s passenger on the hood of defendant‘s vehicle and began to look through it. Id. Trooper Workman found two Suboxone strips inside the purse and placed them on the hood of his cruiser. Id. Trooper Workman asked Mr. Corbett and his passenger if the camouflage bag belonged to them. Id. at ¶ 13. At 16:24:33, Trooper Workman informed Mr. Corbett and his passenger that they were under arrest. Id.
Trooper Workman then opened the rear driver‘s side door of his cruiser to again get K9 Kali and directed him to exit the cruiser. Id. at ¶ 14. After leading K9 Kali to the rear of defendant‘s vehicle, Trooper Workman gave K9 Kali the command to begin a dog sniff. Id. K9 Kali raised up on his hind legs and placed his front paws on the area between the
II. Procedural History
On August 8, 2023, a grand jury returned an indictment charging defendant with one count of possession with intent to distribute 40 grams or more of fentanyl, cocaine, and “crack” cocaine, in violation of
Defendant‘s Motion to Suppress Evidence alleges that the evidence must be suppressed on three independent grounds: first, that the officers did not have probable cause to effectuate the traffic stop; second, that the officers exceeded the appropriate scope and duration of the traffic stop in violation of Rodriguez v. United States, 575 U.S. 348 (2015); and third, that K9 Kali is unreliable and the officers unreasonably searched defendant‘s vehicle when K9 Kali “upped” onto the rear passenger windowsill, inserted his head into the open rear passenger window, and did the same at the driver side
III. Discussion
a. Traffic Stop
The
Defendant argues that the traffic stop at issue in this matter violаted the
i. Probable Cause for Traffic Stop
As to the first Terry factor, a traffic stop is legitimate at its inception when “the officer [has] probable cause to believe a traffic violation has occurred.” United States v. Miller, 54 F.4th 219, 228 (4th Cir. 2022). That is, the officer must have “a particularized and objective basis for suspecting the particular person stopped of” committing a traffic violation or other criminal activity. Kansas v. Glover, 589 U.S. 376, 140 S. Ct. 1183, 1187 (2020). When an officer observes a vehicle he believes to be speeding, radar confirmation of a vehicle‘s excessive speed constitutes probable cause to believe the vehicle is speeding. United States v. Sowards, 690 F.3d 583, 592 (4th Cir. 2012) (collecting cases upholding the proposition that radar supports “reasonableness of an officer‘s visual estimate that a vehicle is traveling in
As to the speed limit, Trooper Workman testified that, while he was positioned facing southbound traffic watching for defendant‘s vehicle “on [U.S. Route] 119 . . . , just north of the [West Virginia Route] 214 intersection,” the defendant‘s vehicle “was speeding when [he] saw it,” as confirmed by a radar reading “that [the defendant] was traveling 72 miles an hour in a posted 65-mile-per-hour zone,”8 in violation of state law. Workman Test. 47:8-49:8, ECF No. 35; see
Troopers Workman and Hannon testified that the traffic stop was effectuated not only because of the defendant‘s speed but also because he suspected that the defendant‘s window tint was illegal. Hannon Test. 22:9-14; see also Workman Test. 48:22-24, 51:20-53:18. Trooper Workman testified that he observed defendant‘s car to have an illegal window tint based on the fact that he could not see the silhouette of a person inside the vehicle, which he testified is only possible when a car‘s window tint exceeds the legal limit in West Virginia. See Workman Test. 52:12-53:6.
Because probable cause to stop defendant‘s vehicle existed based on the officer‘s observation and radar confirmation of excessive speed, the court need not reach the question of whether the officer‘s observation of an illegal window tint provides probable cause to effectuate a traffic stop.
Accordingly, the court finds that the first Terry prong is satisfied, and that the officers effectuating the
ii. Scope of the Stop
Turning to the events that transpired after the defendant‘s vehicle had been stopped, the court considers whether the officers took actions that were reasonably related in scope to the basis of the stop. See Robinette, 519 U.S. at 39; Terry, 392 U.S. at 20.
Defendant argues that officers exceeded the appropriate scope and duration of the traffic stop by allegedly abandoning its mission to issue citations for illegal speed and tint and embarking on an “unfounded drug investigation.” Def. Mot. Br. 4, ECF No. 21. Defendant argues this transgression occurred when, he contends, Trooper Barker “ensured that [K9 Kali] alerted before [Trooper Barker] announced that the normal incidents of the traffic stop were complete,” and thereby ran afoul of Rodriguez v. United States, 575 U.S. 348 (2015). Def. Mot. Br. 4. The government contends that the dog sniff did not unreasonably extend the duration of the traffic stop. Govt. Resp. Br. 10-14.
“[T]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure‘s ‘mission,’ ” and the stop “may `last no longer than is necessary to
Trooper Workman initiated the traffic stop of defendant at 16:08:28 and pulled his cruiser behind defendant‘s vehicle on the shoulder of the road at 16:09:00. Joint Stip. ¶ 2. At 16:10:52, Trooper Workman asked Sgt. Barker to “run [d]efendant‘s and his passenger‘s information and handed him the registration and insurance documents and driver‘s licenses.” Id. at ¶ 3.
Between 16:11:03 and 16:13:19, Trooper Workman asked defendant for consent to search his vehicle (which was denied), asked defendant about his travel plans, asked about the status of his license, asked him to exit the vehicle, asked him about the presence of contraband in the vehicle, patted defendant down, and had defendant move to the front of the vehicle next to
There is no indication, nor does defendant argue, that Sgt. Barker delayed his investigation — in fact, Sgt. Barker testified that after Trooper Workman handed him the documents, he “walked backed back to [his] vehicle and got straight in [his vehicle] and requested [the driver‘s history from dispatch]” and did nothing to delay his inquiry. Barker Test. 106:1-10, ECF No. 35. It took dispatch “a couple minutes” to reply to his inquiry, and “[b]y the time [he] got the responses back from the dispatcher, Trooper Workman had already finished with the dog.” Id. at 106:18, 107:22-24.
The dog sniff occurred while Sgt. Barker was executing a search of the driver‘s history, which is a task that is an “ordinary inquiry incident to a traffic stop.” Rodriguez, 575 U.S. at 355. Accordingly, the court finds that the dog sniff did not “measurably extend the duration of the stop,” Johnson, 555 U.S. at 333, and that it occurred before “the tasks tied to the traffic infraction were — or reasonably should have been — completed,” Perez, 30 F.4th at 375.
In brief conclusion, because the traffic stop was legitimate at its inception and the officers’ action during the stop were reasonably related in scope to the basis of the stop and did not extend its duration, the traffic stop was a reasonable seizure of defendant and his vehicle, permitted by the
b. Level of Suspicion Based Uрon Cooperating Individual‘s Information
If probable cause to search defendant‘s car existed prior to K9 Kali‘s sniff, defendant‘s arguments in favor of suppression due to an impermissible search would fail. The court first considers what level of suspicion objectively arises
i. Probable Cause Based on CI
An unidentified informant‘s tip is “rarely adequate on its own to support a finding of probable cause.” United States v. Miller, 925 F.2d 695, 698 (1991). To determine whether an officer acting on an unidentified informant‘s tip has probable cause, the court must “look to the totality of the circumstances surrounding the information available to the officer.” Id. (citing Illinois v. Gates, 462 U.S. 213, 237 (1983)). In such an analysis, courts consider a variety of factors, including but not limited to whether the “informant‘s interest in obtaining leniency created a strong motive to supply accurate information,” id. at 699; “an officer‘s practical experience and the inferences the officer may draw from that experience,” United States v. McLean, 581 Fed. App‘x 228, 232 (4th Cir. 2014) (citing Ornelas v. United States, 517 U.S. 690, 700 (1996)); and “the facts within the knowledge of arresting officers,” Smith v. Munday, 848 F.3d 248, 253 (2017). Further, an informant‘s “‘veracity’ or ‘reliability’ and his ‘basis of knowledge’ are relevant considerations in the totality-of-the-circumstances analysis,” but it is said that neither consideration is necessary. United States v. Gondres-Medrano, 3 F.4th 708, 715 (4th Cir. 2021). Additionally, police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband was concealed somewhere within it may conduct warrantless search of the vehicle “as thorough as a magistrate could authorize in a warrant.” United States v. Ross, 456 U.S. 798, 824 (1982).
For example, in Alabama v. White, 496 U.S. 325, 329 (1990), an anonymous call reported that White would be leaving a particular apartment at a particular time in a brown Plymouth station wagon with a broken right taillight to go to a particular motel, and that she would have a brown case with an ounce of cocaine therein. 496 U.S. at 327. At the indicated time, police saw an empty-handed woman leave the indicated apartment and get in the described vehicle. Id. After she began driving to the indicated motel, police stopped the car and found marijuana in a case inside. Id. “Relying upon the corroboration of the tip‘s predictive aspects,” the Court in White found “good reason to believe the caller was honest, well informed, and reliable,” and that the officers had probable cause to seize White by pulling her over. Gondres-Medrano, 3 F.4th at 716 (citing White, 496 U.S. at 332).
The court thus turns to whether the cooperating individual‘s tip in this matter was sufficient to establish an
Additionally, though Trooper Hannon has corroborated the CI‘s previous information regarding defendant‘s whereabouts at locations suspected by Trooper Hannon and the 119 Task Force to be apartment complexes related to drug activity, Trooper Hannon has not indicated any instance where he had corroborated defendant‘s drug dealings by, for example, obtaining any evidence from the CI that previous drug transactions have, in fact, occurred. In the same vein, Trooper Hannon has not indicated any other basis of the CI‘s credibility — there appears to be no history of the CI providing reliable, inculpating information in this or other cases.
Further still, though Trooper Hannon knew that defendant had told the CI that the defendant would be traveling to Logan County on April 22, that defendant had previously transported drugs in a camouflage bag, and that he had instructed his CI to order 3.5 grams of cocaine powder from
To be sure, the foregoing indications provide some basis to believe that defendant was engaged in criminal behavior while driving down to Logan County on April 22, 2023. Trooper Hannon had been able to previously confirm the CI‘s tips that defendant was present at two apartment complexes in Logan County, approximately some sixty miles from defendant‘s home in Charleston, and which locations were said to be suspected by the 119 Task Force as being drug distribution residences. At those locations, Hannon saw defendant in his vehicle. Additionally, Hannon had been tipped that the defendant was travеling to Logan
Nonetheless, the court finds that totality of the circumstances fail to establish that the CI‘s information, alone, establishes probable cause to search defendant‘s vehicle. The court is swayed by the lack of any history of the CI providing corroborated, accurate information about the defendant‘s drug dealing; the lack of specific indication or confirmation from Hannon that defendant would be transporting drugs on April 22, 2023, to consummate a sale; the lack of apparent motivation by the CI to provide accurate information; and the lack of prior corroboration by Trooper Hannon of drug-related information provided by the CI. Unlike cases where the tip provides significant detail as to the suspect‘s position, course, or behavior, all that Trooper Hannon could here testify to is that the CI told him that defendant would be traveling down to Logan County at around 2:00 p.m. on April 22, 2023.
Thus, the CI‘s tip alone is insufficient to establish probable cause that the defendant was engaged in criminal activity when he was seen driving toward Logan County on April 22, 2023.
ii. Reasonable Suspicion Based on CI
For example, in Adams v. Williams, an officer was alone in his patrol car when “a person known to [him] approached his cruiser and informed him that an individual seated in a
In this case, the court finds that though Trooper Hannon‘s CI‘s information was insufficient to establish probable cause, it may have been sufficient to establish reasonable
Indeed, at the suppression hearing, Troopers Hannon and Workman believed that they had reasonable suspicion that defendant was engaged in criminal activity based solely on the CI‘s information and the fact that defendant was traveling toward Logan County at the indicated time. Trooper Hannon enlisted the help of Trooper Workman after informing him of his investigation regarding the CI. Hannon Test. 23:2-11 (confirming he had already informed Troopers Workman or Fields “about the CI tips” prior to when they initiated the traffic stop). Trooper Hannon testified that “based on the information that [he] had alone,” he had “reasonable suspicion that [defendаnt] was committing a crime,” that would justify the initiation of a traffic stop, even if defendant had not violated
Viewing the totality of the circumstances and crediting the officer‘s determinations, the court finds that the CI‘s tip provided at most reasonable suspicion that defendant was engaged in criminal activity.
c. K9 Kali‘s Dog Sniff
Defendant‘s next arguments relate to K9 Kali‘s reliability and whether the dog sniff itself violated the defendant‘s
The
This property-based approach applies a two-part test: whether (1) the government trespassed into or onto property protected by the
The second approach to determining whether a
A
i. Canine Reliability
Defendant “challenges [K9 Kali]‘s reliability, certification, and training as a drug detection dog,” and contends that his alert failed to provide probable cause to believe the defendant‘s vehicle had contraband.11 Def. Mot. Br. 5. The government provides ample evidence that K9 Kali had been trained and has proved to be reliable. Trooper Workman testified to the fact that he and K9 Kali had completed a month-long K9 handler course at the West Virginia State Police Academy “specific to narcotic work,” and that K9 Kali is trained in the apprehension, tracking, and the identification of methamphetamine, marijuana, cocaine, crack cocaine, and heroin. Workman Test., 33:16-34:8, 35:19-36:6; see Workman and K9 Kali Training Log 2020, Suppression Hearing Govt. Ex. 4, ECF No. 48-3 (hereinafter, “K9 Kali 2020 Training Log“). At the time of the
In the videos of the drug sniff in this matter, there is no indication (nor argument from defendant) that any officer interfered in the course of K9 Kali‘s drug sniff. The court finds that an alert from K9 Kali during a permissible dog sniff is reliable and would be sufficient to establish probable cause to search for a narcotic that K9 Kali is trained to identify.
Defendant further argues that K9 Kali‘s drug sniff of defendant‘s car was a warrantless “search,” unsupported by probable cause and thus impermissible under the
As a general rule, “a dog sniff is not a search within the meaning of the
However, Jones recognized that the
This analysis is complicated by the fact that the state action challenged — K9 Kali‘s sniff, including when he placed his front paws on two of the open window frames of defendant‘s car and put his snout into the vehicle for approximately two seconds at the rear passenger side window and four seconds at the driver window — was done by a canine, rather than an officer. See Workman Bodycam, at 16:14:15-17 (rear passenger window sniff); 16:14:23-32 (driver‘s side window sniff), ECF No. 21-1. Though it is settled law that a “dog sniff . . . is a measure aimed at detecting evidence of ordinary criminal wrongdoing” and must accord with the
Under Jones, the court must ascertain whether a
iii. Trespass
The first question is whether K9 Kali trespassed against a property interest protected by the
The question, in turn, is whether K9 Kali‘s placement of his paws on defendant‘s vehicle‘s window and intrusion of his snout into defendant‘s open windows (first, at the rear passenger side, then, at the front driver side) constitute trespass. Jones and its progeny instruct that this inquiry is broad, requiring courts to understand that “the property of every man [is] so sacred, that no man can set his foot upon his neighbor‘s close without his leave; if he does he is a trespasser,” and so, any “physical[] occup[ation] [of] private
As Jardines recognized, “the home is first among equals” and the curtilage is tantamount to the home itself for
The Supreme Court has not explicitly defined “trespass,” “intrusion,” or “oсcupation” in this context. See Taylor v. City of Saginaw, 922 F.3d 328, 333 (6th Cir. 2019). Nor has the Fourth Circuit. Accordingly, the court takes guidance from the reliance of Jones, Jardines, and circuit court cases on the common law of trespass and notes that, as defined by the Restatement, common-law trespass is “an act which brings [about] intended physical contact with a chattel in the possession of another.” Restatement (Second) of Torts § 217 cmt. e (1965); see Taylor, 922 F.3d at 332-333; Jones, 565 U.S. at 404-05 (relying upon Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765)); Jardines, 569 U.S. at 8 (relying upon the “strict rule of the English common law“); United States v. Dixon, 984 F.3d 814, 820-21 (9th Cir. 2020) (relying upon Taylor to find that police insertion of a key into the lock of a car to determine if car belongs to suspect is a trespass to obtain information).
Defendant argues that K9 Kali trespassed onto his vehicle in four instances: when K9 Kali placed two paws on the open windowsill of the rear passenger window, when K9 Kali nearly instantaneously thereafter put his snout into the open
Applying the Restatement definition, the court finds that both instances of K9 Kali simultaneously planting his front paws on the defendant‘s vehicle‘s open windowsill and penetrating into the car qualify as a trespass into defendant‘s car, an “effect” for the purposes of the
The government argues that neither the placement of K9 Kali‘s paws on the defendant‘s vehicle nor the insertion of his
The court is unpersuaded. In Anderson, the “inconsequential touch” in question occurred when the canine “raised up once or twice without touching the car, and then
Consequently, the court finds that trespass occurred when K9 Kali placed his paws on the defendant‘s vehicle‘s windowsill and inserted his snout through the open windows, both at the rear passenger side window and driver‘s window.
iv. For the Purpose of Obtaining Information
The next step of the Jones inquiry is whether the trespasses occurred “for the purpose of obtaining information.”
A trained narcotic-detecting “dog sniff . . . is a measure aimed at ‘detect[ing] evidence of ordinary criminal wrongdoing.‘” Rodriguez, 575 U.S. at 355 (quoting Indianapolis v. Edmond, 531 U.S. 32, 40-41 (2000)); see United States v. Perez, 30 F.4th 369, 375 (4th Cir. 2022) (“[A] [dog] sniff is intended to detect ordinary criminal wrongdoing.“) (internal citations omitted).
The government argues that the dog sniff did not occur for the purpose of gathering information because K9 Kali‘s contact with the exterior of defendant‘s vehicle did not itself convey information to Trooper Workman. Govt. Suppl. Resp. 4, ECF No. 44. Not only does this argument fail to address K9 Kali‘s penetration into the car, but it is also an ex post facto argument that defines the purpose of an act with its result. The government relies on a district court case where the court held that under Jones, when no “information [is] gained directly through the trespass,” there has been no search. Anderson, 658 F. Supp. 3d at 1014. This argument is unavailing: Jones and Rodriguez are clear that the court‘s focus must be on the
v. Attribution of K9 Kali‘s Actions to the Government
Still, K9 Kali‘s trespassory actions are not
Though neither the Supreme Court nor the Fourth Circuit has identified the outer bounds of when a drug dog‘s behavior is state action, circuit courts of appeals have articulated guiding principles to determine when a trained canine‘s sniff - during an otherwise constitutional sniff - violates the
As defendant points out, these cases were decided prior to Jones and Jardines, which awakened the “dormant” “[r]eliance on principles of property law, such as trespass,” in
A dog sniff in which the dog trespasses onto defendant‘s property does not violate the
The court has already found that K9 Kali trespassed upon defendant‘s vehicle at both the rear passenger and driver‘s windows by simultaneously “upping” onto the windowsill and penetrating into the vehicle. The court now finds that the trespasses at each window were not alone instinctual; rather, they were the result of deliberate, repeated, and intentional training to “up” onto vehicles while searching for narcotics, enabling simultaneous penetration into open windows when, as in this case, the canine is not restrained. See Workman Test.
While testifying at the suppression hearing, Trooper Workman, K9 Kali‘s handler, testified that “upping” - K9 Kali placing his paws on a car - “[is] not something common or . . . uncommon. We could be running something like a box truck, a little higher off the ground, and you may want to detail him in an upward motion to get those seams up higher,” indicating that K9 Kali is particularly trained to be “detail[ed] in an upward motion” to get off the ground and higher on a vehicle.13 Id. Indeed, Trooper Workman confirmed that he and Kali “[have] done еnough training now that he kind of [ups onto a car] instinctively. It‘s not something that [Workman] even [has] to prompt at this point, unless [Workman] want[s] to.” Id. at 74:11-18. Trooper Workman says K9 Kali “ups” “approximately” once per stop. Id. In this instance, K9 Kali “upped” at each of the two doors he inspected, and Trooper
As the government notes, and Workman‘s testimony and body camera footage, ECF No. 21-1, confirm, Workman did not explicitly instruct K9 Kali to “up” onto defendant‘s car or penetrate its windows during the dog sniff. Id. at 74:3. After K9 Kali was mounted on the car at the lowered rear passenger window and had his head inside the vehicle, Trooper Workman “attempted to pull him down and pull him away from it, just to continue to sweep.” Id. at 84:20-22. Nonetheless, after rounding the front of the vehicle, when Trooper Workman and K9 Kali got to the driver-side front window, which was down, K9 Kali again jumped to put his paws on the windowsill and put his head into the car. Jt. Stip. at ¶ 8.
As to the open windows, the court finds that neither window was open due to Trooper Workman‘s actions. The driver side front window was down by the time Trooper Workman first arrived at defendant‘s car. See ECF No 21-1 (Workman‘s Bodycam) at 16:09:00-34. During conversation with defendant, Trooper Workman asked him if there was anybody in the backseat, and
In none of the cases that address whether a dog‘s otherwise-impermissible actions constitute a
The Fourth Circuit has similarly found that when a police canine behaves as trained, an officer cannot avoid responsibility when the dog “behaved exactly as it was trained to do.” Melgar ex rel. Melgar v. Greene, 593 F.3d 348 (4th Cir. 2010). In Melgar, an officer, seeking to find a missing child, decided to use his patrol dog which had been “trained to find individuals and to bite them when he came in contact.” Id. at 352. When the dog indeed found the missing child and bit him,
Here, the court finds that K9 Kali‘s “upping” onto the car, both at the rear passenger-side window and the front driver-side window, occurred not because of instinct alone, but because K9 Kali had been particularly trained to “up” onto cars while executing a dog sniff. K9 Kali was only in position to put his head into the open windows, which Trooper Workman knew were open prior to the search by K9 Kali, because of the “upping.” Together, K9 Kali‘s “upping” and penetration into defendant‘s vehicle at both the rear passenger and driver‘s windows - a trespass at each location - was done for the purpose of determining whether contraband was present in the car - as a result of orchestrated training by her handler in violation of the
Because K9 Kali trespassed onto defendant‘s property with the officer‘s intent to obtain information by his “upping” onto defendant‘s car, as he had been trained to do, and simultaneously penetrating through the open windows, the court finds that an unlawful search under the
d. Justification to Search Prior to Dog Sniff
The government argues in its supplemental response that Trooper Workman had probable cause to search defendant‘s vehicle before K9 Kali trespassed onto it. See Govt. Suppl. Resp. 9, ECF No. 44.
“The automobile exception [to the
In support of this argument, the government notes that, though K9 Kali‘s alert to signal that he detected the odor of controlled substances was to sit, Trooper Workman testified that he “can tell when [K9 Kali] comes into the odor of narcotics . . . before he goes into that seated position” because K9 Kali‘s behavior changes, including a “head jerk toward” the source of an odor of narcotics, “breathing, tense in his body, just basic mannerisms, in general . . . when he comes into the odor of narcotics.” Workman Test. 43:15-22. Trooper Workman further testified that K9 Kali “always alert[s]” after exhibiting “a mix” or “some of” those changes are exhibited. Id. at 44:6-13.
First, the court notes that, as discussed above, the CI‘s information was sufficient only to establish reasonable suspicion the defendant was engaged in criminal activity, not probable cause. Though the lack of probable cause from the CI
The government‘s argument is further belied by the fact that Trooper Workman also testified that he did nоt notice any of the above “body change[s]” until K9 Kali had already “upped” onto defendant‘s vehicle and put his head into the rear window. Id. at 60:2-10 (“[K9 Kali] initially upped near the rear passenger side seat, which I observed somewhat of a body change, like somewhat of a breathing change around there, a small one. I kind of pulled him out of it and worked him around, and he really locked in. And he displayed that real quick breathing change at the driver‘s side door. And that‘s when he really locked in. I couldn‘t even pull him out of the odor at that point. He was locked in firm. And then he went into that sit.“). Even if probable cause to search defendant‘s vehicle could arise simply upon K9 Kali‘s body changes, which the court does not herein decide, Trooper Workman only noticed those body changes after K9 Kali had already trespassed onto defendant‘s constitutionally protected property.
Finally, the government‘s argument is further undermined by the fact that, at the time of the stop and at the
Accordingly, the court finds unproven the government‘s contention that K9 Kali‘s reaction at the rear passenger door provided probable cause prior to the point when K9 Kali trespassed into defendant‘s vehicle.
e. Reasonable Suspicion Justifying Search
The government additionally argues that, if K9 Kali‘s actions were deemed to be a “search” subject to the
In United States v. Terry, 392 U.S. 1 (1968), the Court held that where an officer can point to “specific and articulable facts,” objectively viewed in the totality of the circumstances, that give rise to reasonable suspicion of criminal activity, a “severe, though brief, intrusion upon cherished personal security” is justified by countervailing governmental interests in “effective crime prevention and detection” and officer safety. 392 U.S. at 22-25. There, the court held that the totality of the circumstances objectively supported a reasonable suspicion of criminal activity, and a
Terry‘s logic and its interest in officer safety extends to traffic stops. Michigan v. Long, 463 U.S. 1032, 1048 (1983). During a Terry stop of an automobile,
the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.
United States v. Griffin, 589 F.3d 148, 153 (2009) (quoting Long, 463 U.S. at 1048). Such limited searches are permissible even “when the suspect is outside of the vehicle and under an officer‘s ‘brief control.‘” United States v. Holmes, 476 F.3d 270, 276 (2004) (quoting Long, 463 U.S. at 1051-52).
The traffic stop here was spawned by probable cause that the defendant had committed traffic violations; it was not based upon reasonable suspicion that defendant was presently engaged in criminal activity. Hannon Test. 22:9-14 (“[T]o
Though Trooper Workman testified that “I felt that, at that time, I had enough reasonable suspicion based on [] Trooper Hannon‘s investigation” and that he “would have stopped the car, regardless, based on” that suspicion, the fact remains that the prompt of the traffic stop in question was “independent PC [probable cause]” of an illegal window tint and speed. Workman Test. 87:16-21. Indeed, while testifying to the grand jury to obtain the indictment in this case, though Trooper Hannon informed them of the information the CI provided to him, he told the grand jury that the only reasons for the traffic stop were the two observed traffic violations. See Hannon Test. 19:3-19. The basis of the stop was to issue a traffic citation for the
The court has already determined that the information provided by the CI established, at most, reasonable suspicion that the defendant was engaged in drug-related criminal activity. That reasonable suspicion may be an alternate justification for the traffic stop itself. See United States v. Singh, 363 F.3d 347, 355 (4th Cir. 2004). However, reasonable suspicion of drug-related criminal activity alone is insufficient to warrant search of the defendant‘s vehicle. Under the relevant exceptions to the warrant requirement, the officers could fully search the defendant‘s vehicle with probable cause or search within the passenger compartment for weapons upon reasonable suspicion that the defendant is armed and dangerous. See Caldwell, 7 F.4th at 200 (automobile exception); Long, 463 U.S. 1048 (permitting a Terry frisk of a passenger compartment). Neither is satisfied here. The officers did not have probable cause to search, nor did they have reasonable suspicion that the passengers were armed and
In the course of the stop, the officers were justified in removing defendant and his passenger from the vehicle and briefly patting them down for their safety. See Pennsylvania v. Mimms, 434 U.S. 106 (1977); Workman Test. 89:14-90:1 (“I knew that I was going to ask for consent [to search defendant‘s car]. So the biggest [reason to ask defendant to exit the vehicle] would be officer safety concerns. There was a knife on the dash. . . . [i]t is a threat, but I wasn‘t super concerned with its location.“). Having addressed their safety concerns by removing all occupants of the car and being without consent or probable cause to conduct a warrantless search, the officers were not permitted to search the defendant‘s vehicle. This, they understood at the time and at the suppression hearing. Id.
The court has found that K9 Kali‘s behavior constitutes a “search” under the
The court concludes that reasonable suspicion to the extent it exists in this case is insufficient to justify K9 Kali‘s search of defendant‘s vehicle.
f. Exclusionary Rule
Having established that K9 Kali‘s sniff of defendant‘s car is an unreasonable “search” under the
In determining the deterrent effect of applying the rule, the Herring Court explained that the deterrent effect is higher where law enforcement conduct is more culpable. Thus, “‘an assessment of the flagrancy of the police misconduct constitutes an important step in the calculus’ of applying the exclusionary rule.”
The Herring Cоurt explained that the rule should not be applied where excluding the evidence would have little deterrent effect on future constitutional violations by law
enforcement officers, and the cost to society of such a rule is high. Id. at 147-148, 129 S.Ct. 695 (concluding that “when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its way’ and the exclusionary rule should not be applied).
United States v. Davis, 690 F.3d 226, 251-52 (4th Cir. 2012). And so, courts should apply the exclusionary rule where “law enforcement actions are patently unconstitutional . . . on the order of brazen or reckless.” Taylor, 963 F. Supp. 2d at 601 (quoting Davis, 690 F.3d at 256). “Where there is little to suggest a pattern of constitutional wrongdoing and little likelihood of future recurrences, the deterrent capacity of the exclusionary rule is diminished.” Id.
In this case, the court has concluded that a drug dog, abiding by its training, jumping onto a car and resting its paws on its windowsill while penetrating the interior of the vehicle with his snout offends the
Despite this guidance, the West Virginia State Police and Trooper Workman trained K9 Kali to “up” onto a vehicle and enabled him to invade its interior at an open window, without probable cause to so trespass. That training “carries a [] darker hue of culpability than a mere nonrecurring error respecting the scope of the law. Absent suppression, the court has little reason to conclude that the unconstitutional practice of” having drug dogs mount onto and into subject vehicles will cease. See Taylor, 962 F. Supp. 2d at 604.
g. Evidence to be Excluded
Because the officers would not have searched defendant‘s car but for K9 Kali‘s unreasonable search, the evidence obtained therefrom must be suppressed. This evidence includes evidence from the “camouflage bag” Trooper Workman found while searching defendant‘s trunk; the “small plastic baggies of suspected controlled substances in an unlocked zipped compartment on top of the bag,” as well as the substances therein; the “marijuana and a set of scales” found by Trooper Fields “in a pink bag in the trunk of the vehicle“;15 the contents of the “purse belonging to [d]efendant‘s passenger“; and the “locked main compartment of the camouflage bag” wherein Trooper Workman saw “suspected controlled substances,” as well as the suspected controlled substances therein. Jt. Stip. ¶ 11.
For the foregoing reasons, the court ORDERS that defendant‘s Motion to Suppress Evidence be, and hereby is, GRANTED.
The Clerk is directed to transmit copies of this order to all counsel of record and any unrepresented parties.
ENTER: February 26, 2024
John T. Copenhaver, Jr.
Senior United States District Judge
Notes
“Q: When Did you direct the cooperating individual to do anything in response to that tip?
A: Yes, ma‘am. I advised the cooperating individual to order 3.5 grams of cocaine from Mr. Corbett.
. . .
Q: When was the defendant supposed to bring those drugs to the cooperating individual?
A: The CI advised Mr. Corbett advised him he would be down in Logan County around 2 p.m. on Saturday, the 22nd.”
Hannon Test. 10:4-13.